June 15th marks the fifth anniversary of the introduction of Bill 168 to Ontario's Occupational Health and Safety Act.
To recognize the significant changes surrounding workplace violence and harassment, Clear Path’s Anna Aceto-Guerin recently hosted a live webinar highlighting recent news and updates to Bill 168. Here's what you need to know:
Wynne government's "It's Never Okay" plan:
On March 6, 2015, the Ontario Government published the “It’s Never Okay” action plan, which aims at
addressing sexual violence and harassment in Ontario. The plan recommends significant changes to the OHSA which would mean important changes for Ontario employers and workers. Employers should take note that these changes include a clear definition of “sexual harassment” under the OHSA, as well as a requirement that all Ontario employers investigate and address workplace sexual harassment complaints.
So, what does this mean for employers?
Not only do the changes require a review of company policy and procedure to ensure legal compliance, but it is also a clear confirmation that sexual harassment is not strictly a human rights issue, but also a workplace safety issue and should therefore be treated as such.
Recent court decisions differ on use of progressive discipline:
Recent case law involving Bill 168 has also brought to light the importance of workplace programs and procedures in regards to the use of progressive discipline.
The arbitrator in Workers United Canada v. Winners Merchants International, 2015 found that one employee stating to another, “I am your worst nightmare,” constituted workplace bullying. Due to the detailed investigation done by the employer, the arbitrator upheld the employer’s decision to suspend the worker for three days due to previous progressive discipline.
Conversely, in Phanlouvong v. Northfield Metal Products, 2014, the judge awarded damages to an employee terminated for punching a co-worker in the face. The employer terminated the employee for just cause stating its requirements under Bill 168 to provide a safe workplace free from violence. Interestingly, the judge acknowledged the employers duties under the OHSA and Bill 168, but also noted the employer’s duty to balance safety concerns with the Common Law principles of proportionate, progressive discipline.
So, what does this mean to employers?
Employers should note the importance of utilizing the “principles of proportionality” when disciplining employees for workplace violence and harassment. In other words, there will be incidents when it is appropriate to terminate an employee for just cause due to workplace violence and harassment, and there will also be cases when it is not. Recent case law suggests that an isolated incident of violence may not constitute grounds for just cause when the action does not result in harm or injury, it is the first offence, the action can be explained as a reaction to provocation and the employee has not received training on workplace violence and harassment policies.
City of Woodstock loses case involving Bill 168 and privacy:
Finally, Bill 168 is no stranger to the controversial issue surrounding employee privacy. Under the Bill, employers must disclose an employee’s history of violence where: fellow employees are likely to encounter that person in the course of their work, and when a risk of physical injury exists. This raises the question of whether employee safety outweighs current privacy legislation. According to the Ministry of Labour it does!
However, recent case law suggests that a “balanced approach” is needed when justifying the amount of intrusion on an employee’s privacy versus employee safety.
The instance, the arbitrator in The Corporation of the City of Woodstock v. The Woodstock Professional Firefighters’ Association, 2015 partially allowed two grievances filed by the Association for the installation of security cameras in two of its fire stations. The employer stated that the installation was driven by its obligations under Bill 168, whereas the Association stated that there was no evidence of any real issues of violence and/or harassment which would justify the intrusion of employee privacy.
Significantly, the arbitrator stated, “the assertion that an employer has or is motived by [Bill 168] is not enough, in and of itself, to justify such measures without regard to privacy interests.”
So, what does this mean to employers?
Employers should structure their workplace violence and harassment policies, programs and procedures, specifically those involving privacy, with the “balanced approach” in mind in order to help avoid litigation or arbitration.
Clear Path Employer Services can assist employers on these updates by providing a comprehensive risk assessment, assisting with updating company policies, and as well as assisting with the training employees. Clear Path also offers a DIY Package which contains the tools needed to comply with Bill 168, which also includes up to two hours of support from a Clear Path consultant.
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